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Research and Information Service Research Paper 25th September 2020 Emma Dellow-Perry and Raymond McCaffrey Legislative Consent Motions NIAR 87-2020 Review of legislative consent motions, their use and recent developments. This briefing should not be relied on as legal or professional advice (or as a substitute for these) and a suitably qualified professional should be consulted if specific advice or information is required. Paper 59/20 25th September 2020 Research and Information Service briefings are compiled for the benefit of MLAs and their support staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public. We do, however, welcome written evidence that relate to our papers and these should be sent to the Research and Information Service, Northern Ireland Assembly, Room 139, Parliament Buildings, Belfast BT4 3XX or e-mailed to [email protected] NIAR 87-2020 Research Paper Key Points A legislative consent motion allows a devolved parliament to consent to the UK Parliament legislating in an area of devolved competence. In recognition of the status of the devolved legislatures, the Sewel convention states that the UK Parliament would not normally legislate in devolved matters without the consent of the relevant legislature. The Sewel convention is not legally binding, so the UK Parliament can legislate without the consent of the devolved legislature. The Sewel convention applies to Bills, and not subordinate legislation. Standing Orders of the Scottish Parliament, Senedd and Northern Ireland Assembly govern the internal processes of how those legislatures deal with legislative consent motions. There are many similarities across the three institutions as to how they approach the issue of legislative consent. The use of legislative consent motions had been largely straightforward and uncontroversial where it has been viewed as more efficient for the UK Parliament to legislate on a particular issue. The Ireland / Northern Ireland Protocol affects areas of devolved competence that were previously dealt with by EU law, but will not be subject to the Sewel convention as it is part of an international treaty. The Senedd and Scottish Parliament have amended their Standing Orders to allow for scrutiny of subordinate legislation made under powers in the EU Withdrawal Act (2018) and EU Withdrawal (Agreement) Act (2020), but the NI Assembly, as yet, does not have codified procedures. Northern Ireland Assembly, Research and Information Service 1 NIAR 000-000 Research Paper Executive Summary A legislative consent motion allows a devolved parliament to consent to legislation from the UK Parliament which deals with an area of devolved competence.1 The scope of the mechanism is delineated by the terms of the devolution statute, which lays out matters reserved to the UK Parliament; and the Sewel convention, which states that the UK Parliament will not, ordinarily, legislate for an area of devolved competence without the consent of the devolved parliament Broadly, devolved legislatures can provide a legislative consent motion to three types of legislation from the UK Parliament. Most frequently, they apply where the Act deals with a matter of devolved competence. Legislative consent motions may also apply where the legislation affects the extent of devolved competence, either by changing the competence of the legislative assembly, or of a devolved government. From a constitutional perspective, the Sewel convention is not binding and legislative consent motions, while important politically, have little legal effect.2 The UK Parliament retains the right to legislate in any aspect of devolved competence, with or without consent, as it remains the sovereign parliament. Where it is convenient for the UK Parliament to legislate on behalf of the devolved legislatures the convention allows the relevant legislature to give consent, but it does not demand it in all circumstances. The UK’s decision to leave the EU has raised a number of issues around devolved legislation and legislative consent motions. These issues have two broad and overlapping themes. The first is the influence of the Sewel convention on devolution settlements in the context of the UK’s exit from the EU. The second is how legislative consent mechanisms would operate where devolved powers intersect with EU law. Against that background, this research paper has been produced to answer questions about the operation of the legislative consent motion, how it has been used in the past and how legislative consent motions will operate in the future. The research has identified that the Senedd,3 Northern Ireland Assembly and Scottish Parliament all approach legislative consent motions for primary legislation in a similar 1 UK Parliament Glossary “legislative consent motion” retrieved 21st September 2020 https://www.parliament.uk/site information/glossary/legislative-consent/ 2 R (Miller) v Secretary of State for Exiting the European Union; In re McCord; In re Agnew [2017] UKSC 5, [2018] AC 61 3 The National Assembly for Wales formally changed its name to the Welsh Parliament / Senedd Cymru on 6 May 2020. Guidance states that the institution will be commonly known as the Senedd in both languages. In the interests of clarity, this briefing paper will refer to the Senedd throughout. Northern Ireland Assembly, Research and Information Service 3 NIAR 000-000 Research Paper way and using similar procedures. The SOs of the Senedd and the Scottish Parliament do allow for greater involvement of the legislature than the NI Assembly, with members having the right to bring LCMs to a vote where the executive fails to do so, The majority of UK Parliament legislation which deals with devolved matters has been uncontroversial and, on the few occasions on which consent has been withheld, the matter has usually been dealt with by compromise on the part of the UK Government. Research has also shown that, from a constitutional perspective, a legislative consent motion is not essential to UK-wide legislation. This was illustrated by the refusal of legislative consent to the EU Withdrawal Act, and the Supreme Court’s subsequent judgment in Miller.4 Legislative consent motions and the UK’s Exit from the EU The Sewel convention does not apply to situations where secondary legislation relates to or modifies devolved competence or functions. After the 31st December 2020, EU laws will no longer apply, and some domestic legislation, which relies on definitions or mechanisms laid out in EU law, may not function properly. Many of these are in areas of devolved competence. The combined effect of the European Union Withdrawal Act (2018) and EU Withdrawal Agreement Act (2020)5 is to grant powers to UK Government Ministers to make regulations in devolved areas of competence by way of statutory instrument (SI), where those powers intersect with EU law. This was achieved by amending the Government of Wales Act (2006), Scotland Act (1998) and Northern Ireland Act (1998) to grant UK Government Ministers additional powers to legislate in areas of devolved competence. In some circumstances, a Minister may exercise the powers jointly with one or more devolved authorities. The Senedd and Scottish Parliament have procedures in place which define the process for review of statutory instruments, but no equivalent process appears in the Standing Orders of the NI Assembly. These consent processes show greater divergence than the legislative consent Standing Orders which apply to primary legislation. Accordingly, the Committee may wish to consider whether a change to the Standing Orders of the NI Assembly would be welcome, to facilitate scrutiny of legislation made under the auspices of the Withdrawal Act(s). 4 As above, fn2. 5 Hereafter referred to as the Withdrawal Act(s). Northern Ireland Assembly, Research and Information Service 4 NIAR 000-000 Research Paper Summary Legislative consent motions allow devolved parliaments to express their will when the UK Parliament seeks to legislate in an area of devolved competence. The challenges presented by the UK’s exit from the EU have highlighted some of the deficiencies in this process. The consequences for the Sewel convention have yet to be fully explored and this paper identifies the procedures which the Scottish and Welsh Parliaments have developed to consent to legislation passed under the Withdrawal Act(s). The changes to the ordinary functioning of devolved consent are significant and the potential for further disagreement remains. Northern Ireland Assembly, Research and Information Service 5 NIAR 000-000 Research Paper Contents Key Points .............................................................................................................................. 1 Introduction ............................................................................................................................ 8 1 Background ............................................................................................................ 8 2 Procedures for dealing with requests for legislative consent ................................. 10 3 The Scottish Parliament and Legislative Consent ................................................. 11 3a Legislative Consent in the Scottish Parliament .................................................... 11 3b Legislative Consent for EU Withdrawal Act Instruments ....................................... 12 4 The Senedd and Legislative Consent ..................................................................
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